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FOR PUBLICATION

FILED
Dec 21 2010, 8:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CARA SCHAEFER WIENEKE Wieneke Law Office, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
SHERENE M. POLING, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 90A05-1006-CR-421

APPEAL FROM THE WELLS CIRCUIT COURT The Honorable David L. Hanselman Sr., Judge Cause No. 90C01-0709-FD-79

December 21, 2010 OPINION - FOR PUBLICATION VAIDIK, Judge

Case Summary Sherene M. Poling appeals her conviction for Class D felony theft arising from her act of stealing cigarettes from a store. Poling contends that the trial court abused its discretion by denying her request to instruct the jury on criminal conversion as a lesser included offense of theft and that the State committed prosecutorial misconduct during closing arguments by reading Indiana Code section 35-43-4-4(c), which indicates that concealing property offered for sale and removing it from the business premises constitutes prima facie evidence of theft. We conclude that the trial court did not abuse its discretion by refusing to instruct the jury on criminal conversion because there was no serious evidentiary dispute regarding Poling's intent to deprive the store of the cigarettes' value or use. Further, Poling has waived her claim of prosecutorial misconduct and thus must show fundamental error. Concluding that there is no error, much less fundamental error, in the State's reading of Section 35-43-4-4(c), we affirm. Facts and Procedural History One day in April 2007, Poling twice visited Save-On Liquor in Bluffton. She purchased a quart of beer during her initial visit and later returned and purchased another quart of beer. After she paid for her beer during her second visit, Poling stood at the counter and had a conversation with another customer and Teresa Roop, the store clerk. Roop was behind the counter stocking beer. At one point, when Roop bent down to pick up a box, Poling grabbed a few packs of cigarettes from the counter and put them in her pocket. Roop thought she saw Poling put something in her pocket, but because she was

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unsure, she did not say anything about it. Poling left the store without paying for the cigarettes. The next day, Roop told her supervisor to review the surveillance tape because she thought Poling may have stolen cigarettes. The surveillance tape showed Poling taking cigarettes from the counter, putting them in her pocket, and leaving. The State charged Poling with Class D felony theft. Ind. Code

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